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U.S. Military Purchasing Combat Equipment for Domestic Contingency Planning

An example of a Stryker Infantry Carrier Vehicle operating in Iraq in July 2009. A number of Strykers and other combat vehicles are being purchased by the Department of Defense under an obscure section of the FY2008 National Defense Authorization Act for "homeland defense missions, domestic emergency responses, and providing military support to civil authorities." Photo via Pennsylvania National Guard.

Public Intelligence

For the last two years, the President’s Budget Submissions for the Department of Defense have included purchases of a significant amount of combat equipment, including armored vehicles, helicopters and even artillery, under an obscure section of the FY2008 National Defense Authorization Act (NDAA) for the purposes of “homeland defense missions, domestic emergency responses, and providing military support to civil authorities.” Items purchased under the section include combat vehicles, tanks, helicopters, artillery, mortar systems, missiles, small arms and communications equipment. Justifications for the budget items indicate that many of the purchases are part of routine resupply and maintenance, yet in each case the procurement is cited as being “necessary for use by the active and reserve components of the Armed Forces for homeland defense missions, domestic emergency responses, and providing military support to civil authorities” under section 1815 of the FY2008 NDAA.

Section 1815 of the FY2008 NDAA requires that every five years the Secretary of Defense work with the Secretary of Homeland Security to determine “military-unique capabilities needed to be provided by the Department of Defense to support civil authorities in an incident of national significance or a catastrophic incident.” The section defines “military-unique capabilities” as those that “cannot be provided by other Federal, State, or local civilian agencies” and are “essential to provide support to civil authorities in an incident of national significance or a catastrophic incident.” Once these “military-unique capabilities” have been determined in consultation with the Secretary of Homeland Security, the Secretary of Defense must develop a plan for maintaining the capabilities as well as any “additional capabilities determined by the Secretary to be necessary to support the use of the active components and the reserve components of the Armed Forces for homeland defense missions, domestic emergency responses, and providing military support to civil authorities.” Once the plan is enacted the DoD must then “include in the materials accompanying the budget submitted for each fiscal year a request for funds necessary to carry out the plan . . . during the fiscal year covered by the budget.”

Subsection (e) of section 1815 of the FY2008 NDAA also modifies the official roles and responsibilities of the Secretary of Defense stated in 10 USC § 113 to indicate that “with the approval of the President and after consultation with the Chairman of the Joint Chiefs of Staff” the Secretary is responsible for providing “written policy guidance for the preparation and review of contingency plans, including plans for providing support to civil authorities in an incident of national significance or a catastrophic incident, for homeland defense, and for military support to civil authorities.” This guidance will be provided “every two years or more frequently as needed and shall include guidance on the specific force levels and specific supporting resource levels projected to be available for the period of time for which such plans are to be effective.”

Origins of §1815 of the FY2008 NDAA

Section 1815 of the FY2008 NDAA is the result of recommendations made by the Commission on the National Guard and Reserves (CNGR), a 13-member independent commission created by Congress in 2004. In their final report published in 2008, the CNGR describes section 1815 as a way of prioritizing domestic support missions within the military, allowing DoD to explicitly budget for resources needed in providing military support to civil authorities. The final report of the CNGR describes the Department of Homeland Security as “the federal agency with the most comprehensive national perspective on the response capabilities present in federal, state, and local government” placing it in the “best position to generate civil support requirements.” The CNGR report also recommends that DoD, the National Guard and DHS work to “exchange representatives” and personnel in advisory positions to increase common knowledge and training related to civil support missions.

A Congressional Research Service report on the domestic support roles of U.S. Northern Command describes section 1815 of the FY2008 NDAA as a strengthening of the relationship between the Department of Defense and the Department of Homeland Security:

Seeking to continue to strengthen relationships between DHS and DOD, the 2008 NDAA directs the Secretary of Defense, in consultation with the Secretary of Homeland Security, to determine what military-unique capabilities DOD provides that are necessary to support civil authorities during national catastrophic incidents. Additionally, the 2008 NDAA (P.L. 110-181) directs DOD to budget for additional requirements deemed necessary to conduct civil support missions.

In November 2008, Secretary of Defense Robert Gates issued a memorandum on paths to implementing the CNGR’s suggestions. The memorandum orders the Secretaries of the military departments and the Commander of U.S. Special Operations Command, in coordination with the Commanders of U.S. Northern Command, U.S. Pacific Command and the Chief of the National Guard Bureau to identify critical dual-use (CDU) equipment as part of the military’s overall efforts to comply with section 1815 of the FY2008 NDAA. CDU is equipment that can be employed by National Guard and other military forces in both their federal and state missions allowing “personnel to assist civil authorities in responses to natural disasters, acts of terrorism, and other man-made disasters as identified in the national planning scenarios.”

The Government Accountability Office released a report in 2010 on the DoD’s efforts to identify capabilities for supporting civil authorities during disasters and other emergencies.

The capabilities-based assessment also noted that DOD is in the process of implementing Section 1815 of the National Defense Authorization Act of 2008 (Pub. L. No. 110-181, §1815 (2008)), which requires DOD to work with DHS to determine the military-unique capabilities DOD needs to provide for civil support operations and to prepare a plan to provide funds and resources to maintain existing military-unique civil support capabilities or any additional capabilities required for homeland defense and civil support missions. According to the capabilities-based assessment, these efforts will ultimately inform the fiscal year 2012 programming and budget cycles with military-unique or other civil support capabilities required for DOD to respond to catastrophic or other incidents of national significance.

Nearly a year after it was passed, the House Armed Services Committee reiterated its “strong support” for section 1815 of the 2008 NDAA and “urged” the DoD to comply with its planning requirements. The committee also encouraged DoD to incorporate “non-lethal capabilities” in its civil support planning:

In connection with the Department’s mission for defense support to civil authorities, the committee notes that section 1815 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181) requires the Secretary of Defense to identify the military-unique capabilities required by the military services, including the reserve component, the joint commands, and defense agencies, to support civil authorities in an incident of national significance or catastrophic event. The committee urges the Department to comply with section 1815 and encourages the Department to determine whether there are non-lethal capability requirements for domestic homeland defense and defense support to civil authorities’ missions.

Army Chief of Staff Ray Odierno wrote in a recent article in Foreign Affairs that the increasing use of the military in domestic situations will be part of a necessary evolution as it transitions to “responding in force to a range of complex contingencies” both inside the U.S. and abroad. Odierno states that the “need for U.S. armed forces, and the army in particular, to provide planning, logistical, command-and-control, and equipment support to civil authorities in the event of natural disasters continues to be demonstrated regularly and is unlikely to diminish.” The Army will “contribute to broader national efforts to counter those challenges at home, if needed” including using “active-duty forces, especially those with niche skills and equipment, to provide civilian officials with a robust set of reliable and rapid response options.”

SEC. 1815. DETERMINATION OF DEPARTMENT OF DEFENSE CIVIL SUPPORT REQUIREMENTS.

(a) DETERMINATION OF REQUIREMENTS.—The Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine the military-unique capabilities needed to be provided by the Department of Defense to support civil authorities in an incident of national significance or a catastrophic incident.

(b) PLAN FOR FUNDING CAPABILITIES.—

(1) PLAN.—The Secretary of Defense shall develop and implement a plan, in coordination with the Secretaries of the military departments and the Chairman of the Joint Chiefs of Staff, for providing the funds and resources necessary to develop and maintain the following:

(A) The military-unique capabilities determined under subsection (a).

(B) Any additional capabilities determined by the Secretary to be necessary to support the use of the active components and the reserve components of the Armed Forces for homeland defense missions, domestic emergency responses, and providing military support to civil authorities.

(2) TERM OF PLAN.—The plan required under paragraph (1) shall cover at least five years.

(c) BUDGET.—The Secretary of Defense shall include in the materials accompanying the budget submitted for each fiscal year a request for funds necessary to carry out the plan required under subsection (b) during the fiscal year covered by the budget. The defense budget materials shall delineate and explain the budget treatment of the plan for each component of each military department, each combatant command, and each affected Defense Agency.

(d) DEFINITIONS.—In this section:

(1) The term ‘‘military-unique capabilities’’ means those capabilities that, in the view of the Secretary of Defense—

(A) cannot be provided by other Federal, State, or local civilian agencies; and

(B) are essential to provide support to civil authorities in an incident of national significance or a catastrophic incident.

(2) The term ‘‘defense budget materials’’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.

(e) STRATEGIC PLANNING GUIDANCE.—Section 113(g)(2) of title 10, United States Code, is amended by striking ‘‘contingency plans’’ at the end of the first sentence and inserting the following: ‘‘contingency plans, including plans for providing support to civil authorities in an incident of national significance or a catastrophic incident, for homeland defense, and for military support to civil authorities’’.

(2) The Secretary of Defense, with the approval of the President and after consultation with the Chairman of the Joint Chiefs of Staff, shall provide to the Chairman written policy guidance for the preparation and review of contingency plans, including plans for providing support to civil authorities in an incident of national significance or a catastrophic incident, for homeland defense, and for military support to civil authorities. Such guidance shall be provided every two years or more frequently as needed and shall include guidance on the specific force levels and specific supporting resource levels projected to be available for the period of time for which such plans are to be effective.